WCRA: ‘Trivial Incident’, WPHS Act & Dr Langley preferred over Dr Licina

Dank v Tabcorp Holdings Limited [2011] QDC 2

C F Wall QC:

LIABILITY

[1] The plaintiff was injured at work when she lifted a box of photocopy paper from the floor in her office. The accident happened on Friday 8 October 2004. The plaintiff was employed by the defendant as a secretary where she was highly regarded[1]. I accept the plaintiff’s account in evidence as to how she was injured and how she was lifting the box. It was an awkward lift. She was as close as she could get to the box[2]. She had to lean forward and over the box. She bent forward and down at an angle, picked up the box from the floor, turned as she lifted it to put it on her desk to the left as she was straightening up and “felt a twang in her back”[3]. She was about half way or a bit more up when she felt the pain about two thirds of the way to the top of her desk[4]. The lift is shown in photos 2 and 3 of ex 1. She had to reach forward and down to pick up the box. The box weighed about 12.7 kg. It contained 5 reams of photocopying paper. She was intending to unpack the box once she had placed it on her desk and store the reams in the cupboard under the photocopier[5]. In simple terms it was a twisting lift with the box held at an angle and in this way it exposed the plaintiff to a foreseeable risk of injury. She found the lift “very, very hard” because she couldn’t pick the box up easily. She approached it at an angle[6]. She had received no instructions or directions as to how to lift the box or how not to lift it from the floor. She received no training in respect of lifting or lifting techniques, or the storage of the boxes[7]. She was not instructed not to lift the box as she did. That she could have moved the box away from the wall and then lifted it in a different way[8] is no answer to the fact that she was not instructed how not to lift boxes such as the one lifted. I accept her when she said she never “thought about” another way to lift the box[9]. She lifted the box as she had always done.

[2] The plaintiff agreed in cross-examination that “common sense” in 2004 required her to get as close as possible to the load to be lifted so she would be “stronger”[10]. She didn’t, at the time, consider that she was picking the box up the wrong way; she had done it the same way many times before[11] and her supervisors were aware of this and sometimes helped her lift the boxes[12].

[3] As secretary of the Health & Safety Awareness Committee I accept her evidence that her involvement was only as minutes secretary and she played no part in the work or discussions of the Committee[13]. I also accept her evidence that she understood the “leading role” reference to her on page 3 of ex 19 was to her role only as minutes secretary[14]. I also accept her evidence that she was not “keenly aware of workplace health and safety considerations”[15].

[4] After the accident the stores personnel who delivered the boxes to the office were instructed (she thinks by occupational health but not by her), to place the boxes on her desk and not on the floor. That occurred[16]. Before this change it had been the system or practice for the boxes to be placed on the floor[17].

[5] The defendant’s Incident Summary, ex 12, is to the effect that after the accident the plaintiff was “instructed re good manual handling techniques”, “instructed to remove packets (reams) of paper one (at) a time instead of lifting the entire box” and “in future ensure that stores leave heavier items on her desk instead of the floor”.

[8] I prefer the evidence of Mr McDonald to Dr Cook. I thought Mr McDonald was better qualified, more experienced and better informed about the circumstances of the plaintiff’s lift and her position when she picked up the box. Dr Cook didn’t inspect the work site and she assumed there was no twisting element to the lift[25]. She said her report was not predicated on the plaintiff approaching the box at an angle and twisting. She said she was not aware of a twist factor to the lift. She agreed that it is “well recognised that twisting while lifting exacerbates the risk”[26]. She also agreed that adding a twist to the lever arm distance increases the risk[27].

[13] Mr McDonald agreed that what the defendant subsequently did (see ex 12) would have protected the plaintiff from the risk of injury. I agree with the submission of Mr Howe[37] that the defendant unreasonably failed to take measures or adopt a means reasonably open to it in all the circumstances which would have protected the plaintiff from the dangers of her task without unduly impeding the accomplishment of the task. No consideration appears to have been given by the defendant before the accident to whether or not the risk of injury could be reduced by the simple and cost free method subsequently adopted.

[13] Mr McDonald agreed that what the defendant subsequently did (see ex 12) would have protected the plaintiff from the risk of injury. I agree with the submission of Mr Howe[37] that the defendant unreasonably failed to take measures or adopt a means reasonably open to it in all the circumstances which would have protected the plaintiff from the dangers of her task without unduly impeding the accomplishment of the task. No consideration appears to have been given by the defendant before the accident to whether or not the risk of injury could be reduced by the simple and cost free method subsequently adopted.

15] Dr Noel Langley, an orthopaedic surgeon[38] said that the mechanism of the lift described by the plaintiff, the manner in which she lifted the box, could have caused

the disc prolapse[39]. His evidence was to the same effect[40].

[16] In my view the plaintiff suffered a disc prolapse as she was lifting the box and this was due to the negligence of the defendant in the respects alleged by the plaintiff, I find that the defendant failed to

(a) instruct the plaintiff not to lift in the way she did;

(b) instruct and ensure that storemen or other employees placed the boxes of paper on her desk;

(c) have in place a system for storing such boxes at knuckle height.

[17] It was clearly foreseeable that the plaintiff risked injury should she lift the box from the floor in the way in which she did. The defendant failed to take reasonable care to avoid the foreseeable risk of injury to the plaintiff. The steps which the defendant should have taken to avoid that risk were simple, easy and cost free. They were taken after the plaintiff was injured and they should have been taken before. The risk of back injury to employees in lifting objects from the floor was known.

[18] I cannot accept the submission of Mr Myers that this was just a simple or trivial lift, a simple accident for which the employer is not to blame.

[19] For the same reasons that the defendant succeeds on negligence she must also succeed on the breach of statutory duty relied upon. The plaintiff was injured at work. The defendant failed to ensure that her workplace health and safety was not affected by the conduct of the defendant’s business or undertaking. The defendant did not ensure that the plaintiff was kept free from the risk of injury. The defendant did nothing to prevent the risk of injury and cannot avail itself of the provisions of sections 26, 27 and/or 28 of the Workplace Health & Safety Act 1995. See Bourke v Power Save Pty Ltd & Anor [2008] QCA 225 and Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] 2 Qd R 83.

QUANTUM

[31] On 26 September 2006 she first complained to her regular doctor – Dr Mark Whillans – of low back pain radiating down her right leg. He prescribed Brufen for pain relief[71]. A CAT Scan carried out on 26 September 2006 showed a L5/S1 disc prolapse[72] which, I find, is the cause of her back pain and problems and the pain radiating into her right buttock and right leg and was caused on 8 October 2004.

[32] I think the abbreviated history in ex 6 is more probably due to Dr Langley’s history taking method rather than to the suggestion[73] that the plaintiff has not had the problems she stated since the accident. I am reinforced in this view by the history recorded by both Dr Blue[74] and Dr Licina[75]. The reference to 2005 rather than 2006 in the second paragraph on page 2 of ex 6 is clearly a mistake.

Employment with the defendant

[33] The plaintiff could have retained her employment with the defendant (up until today)[76] but she had for a long time wanted to work in aged care. That was where her heart was[77]. She believed she would cope with the work[78]. That is what she has done since leaving the defendant’s employment. She didn’t think she would not be able to cope or that she would be “left with a bad back”. She thought she would be able to do the work[79]. She didn’t expect it to be as heavy as it was[80]. She thought her back “would come good”[81]. I don’t consider it was, in the circumstances, unreasonable of her to change jobs. I accept the written submissions of Mr Howe in this respect[82].

[36] She is not entitled to compensation for the periods from 25 February 2005 to 1 June 2005 and 6 June 2005 to 20 June 2005 when she was training to be a personal care worker and was not earning an income for reasons unrelated to her injury.

[37] Her first steady job in personal care was with RSL Care. She believed she could carry out the work. She couldn’t cope with the heavier or more physically demanding cleaning work because of her back and she resigned on 4 December 2006[83]. She remained as long as she did because her employer initially agreed to cut back her cleaning shifts, which happened for a couple of months but then they increased to such an extent that she left[84]. She worked 20-27 hours a week for RSL Care. Her back prevented her from working more hours[85]. See also ex 15 which I accept. She found her employment with Ultimate Personal Care Services more onerous than the earlier job because she was looking after paraplegics and the work was too heavy for her[86]. She couldn’t handle the work involved[87]. Her current employment with Spiritus Care Services is easier as a separate team does the cleaning work[88]. Her supervisor is aware of her back problems and the restrictions they place on her. She only does light cleaning and her job is permanent casual. She works all the hours she wants to[89]. She doesn’t think though that she could work a 40 hour week[90]. But for her back pain she would work more hours each week, up to 40[91].

[40] But for the accident she would have worked well into her 60’s. Because of current pain she can see herself only working “for a couple more years maximum” even with reduced hours[97].

[44] Her earnings since the accident are detailed in ex 18 and the earnings of Deborah Andrews who took the plaintiff’s secretarial job are detailed in her group certificates ex 25. She agreed that had she remained in her employment with the defendant she would have earned more than she has in aged care[102]. Given her back pain and age she has concerns now about her employability as a secretary[103] and these are confirmed by Mr Johanson in his evidence and in his report ex 11.

[46] Mr Johanson expressed the following opinions in ex 11 which I accept…

[47] I also accept the following evidence which he gave:

“I think the reality is in the recruitment industry that any employer that hears the word ‘bad back’ and ‘Worker’s Comp’ basically would dismiss that application. There are enough able bodied people out there looking for jobs. In the office area sometimes there’s 70, 80, 100 applicants for each job. If a person did mention – and this is the real world – if a person did mention they had an injury that prevented certain tasks, duties that they could not perform, they would certainly not be hired over a able bodied person.

One of the things with personal carers is that there is a high demand for physical fitness because of the lifting, carrying and the physical nature of the job, so people in that industry, if they had a bad back and disclosed it, it would be very unlikely they would gain employment[106].

Can employees pick and choose what particular tasks they will do? – No.

There are a number of factors that would affect her employability. The main one if she was going to go into the office area, they’re her lack of skills and her age in that area. She’d be up against 18 to 25 old years who would have a lot more experience, who would be on the same type of money. Her ability to —–

HIS HONOUR: Now, why – why would – she’s a long term secretary before she went into aged care, why would you say that an 18 year old would have more skills than she would as a secretary? – An 18 to 25 year old nowadays coming out of school, coming out of TAFE or university have very good computer literacy. With the new development over the last five or six years of word processing, internet usage, Excel spreadsheet, MYOB and things like that, a person at school sometimes comes out being able to type 70 words a minute and would be more competent than a person at 50 who may have worked five or 10 years ago in that area. Because the – the technology has changed so much that people that may have operated and used equipment of five to 10 years ago certainly would need retraining and they’d be up against younger people with the same skill level[107].

If I mentioned to an employer that person cannot do the whole job, has a disability, an injury, an impairment and a previous Worker’s Comp claim, they would not be considered. I have placed a lot of people with the casino and their policy is not to be that generous towards people with injuries and impairments.

They would rather take an able-bodied person, and I’ve placed people in the office, admin, cooking, bar supervisors and gaming staff, and that’s their policy[108].

I’ve placed a lot of people in personal care and some people can get away with very light duties which is just shopping; taking them out in the car for a trip to the doctor, a trip to the movies[109].”

[48] The plaintiff agreed that her employment since leaving the defendant has been harder on her back and may in itself have aggravated her back condition[110].

[49] Dr Langley said that the plaintiff’s disc prolapse was caused when she lifted the box and that her symptoms are likely to persist in the future[111]. He re-examined her on 6 August 2010 and her symptoms were the same as before, pain going up and down[112]. Pain from such an injury can “fluctuate up and down”[113]. A niggling pain and a tingling feeling on return to work would be consistent with her injury[114]. Heavy duties and repetitive lifting and bending are inadvisable and she is better suited to sedentary work. She will have trouble with heavier tasks and with domestic duties. Her complaints are consistent with her injury and she has a 10% whole person impairment[115]. But for the accident and barring any other traumatic events she could have remained in her pre-accident job.

[50] To the extent that they differ I prefer the opinions of Dr Langley to those of Dr Licina because of their consistency with the evidence of the plaintiff which I accept and with the chiropractic treatment which the plaintiff clearly had following her injury[116].

[51] Dr Langley said that a later flare-up of pain does happen “with disc lesions particularly when they’ve got radiation into their leg” which the plaintiff has[117]. He saw no signs of any significant degeneration existing prior to 8 October 2004. Even if there was some it could have been asymptomatic[118]. Even though he said that the plaintiff should be able to maintain her employment as a personal care worker for the time being if she is not doing heavier type work she may need to stop when she is around 60[119]. In evidence he said that because her injury is chronic[120] it would, because of what she says, be reasonable for her to stop working in 2 years[121]. As to her capacity for administration work that “depends on what she is doing” which also depends on how she copes and whether she has problems with what she is doing. It is, to an extent a matter for subjective assessment[122].

[52] If the disc prolapse occurred as postulated by Dr Licina, in a setting of pre-existing degeneration[123] (and I prefer the evidence of Dr Langley that there was none), I am satisfied, on the evidence of the plaintiff, that it was and would likely have remained asymptomatic. I am also unable to accept the opinion of Dr Licina[124] that the plaintiff’s disc prolapse was possibly caused by the “heavy activities of cleaning associated with being a personal carer”. In my view it was caused by lifting the box. Ongoing pain (as described by the plaintiff) and “flares of the current frequency” are likely to continue[125] and are clearly due to the prolapsed disc and are consistent with her injury[126]. She has, according to Dr Licina, a permanent injury amounting to a 5 – 8% permanent impairment[127]. I prefer the 10% expressed by Dr Langley which is, I think, more consistent with the pain and restrictions described by the plaintiff. In my view the plaintiff’s symptoms did, in a relevant sense, persist and her present condition is therefore related to the incident of 8 October 2004[128] and not to anything else. Dr Licina has not seen the plaintiff since 27 July 2007.

[54] I am unable to accept Dr Licina’s opinion[135] that the plaintiff’s injury healed itself and her current symptoms are the result of a later injury or something superimposed on the initial injury. That is quite inconsistent with the plaintiff’s description of her ongoing, albeit variable, pain. He did agree though, that if the pain had not in fact settled within 6 – 12 weeks (which I find it had not) it would be ongoing and chronic[136]. He also agreed that severe pain could cause temporary immobility of the legs and a feeling of falling[137]. The fact that the pain did not settle supports its genesis in the lifting incident rather than later activities.

[55] Her injury has clearly restricted and limited her earning capacity and the employment opportunities open to her. Her loss in this area is to be approached on the basis of her present employment (it not being unreasonable for her to have left her employment with the defendant for a career in aged care) and her impaired capacity, both past and for the future, to carry out that type of employment.

[56] She is clearly at a disadvantage on the open labour market. There are aspects of aged care work that she can’t do – mainly heavy work. Her present employment persists in a supportive environment. She will probably have to stop working, because of pain and related restrictions, in two years time. I am satisfied that, but for the accident she would have worked until about age 60 years. I think that pain will cause her to stop working altogether in about two year’s time at which time she will not be able to work.

 Age  Injury  CLA  Uplift  Occupation  Past loss of income  Future loss of income  G-v-K
54(F) L5/S1 disc prolapsed with sciatica – 10% impairmentDr Langley preferred over Dr Licina (5-8%)

$50,000.00

n/a  Secretary $266 weeks at $138.60 per week amounts to $36,867.60.Interest on $36,867.60 at 5% for this period is $9,427.04. Past lost supa at 9% is $3,318.08. $15.63 per hour for 10 hours per week for two years and then at that amount for 38 hours per week for about 3 years, 4 months both amounts discounted by 5%.$112,091.06

Supa at 9% is

$10,088.19.

 

[66] I give judgment for the plaintiff against the defendant for $239,613.62 plus costs to be assessed on the standard bases unless agreed.

Brisbane Barrister – David Cormack

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